Selective Draft Law Cases 1918

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Selective Draft Law Cases 1918

Appellants: Joseph F. Arver and others

Appellee: United States of America

Appellants' Claim: That the Selective Draft Act of 1917 violated various provisions of the U.S. Constitution including Section 8 of Article I and the First and Thirteenth amendments.

Chief Lawyers for Appellants: T.E. Latimer, Edwin T. Taliferro, Harry Weinberger

Chief Lawyer for Appellee: John W. Davis, Solicitor General

Justices for the Court: Louis D. Brandeis, John H. Clarke, William R. Day, Oliver Wendell Holmes, Joseph McKenna, James C. McReynolds, Mahlon Pitney, Willis Van Devanter, Chief Justice Edward D. White

Justices Dissenting: None

Date of Decision: January 7, 1918

Decision: Ruled in favor of the United States by finding that the act did not violate any section of the U.S. Constitution.

Significance: The case was the first to reach the Supreme Court challenging the federal government's legal power to draft men into the military. With the power confirmed, the military draft was used at various times throughout the twentieth century including the Vietnam War (1964–1975).

In 1917 as America entered World War I (1914–1918), patriotic songs sounded in the hearts and minds of young men enthusiastically answering the call to register for the newly-established draft. Encouraged by government posters as well as the songs, millions stood in long lines to sign up. Yet others chose to not heed the call and refused to register. America has a long history of using conscription (drafting citizens into military service) to raise short-term military forces in time of conflict. However, opposition to conscription by pacifists (those who believe disputes must be settled by peaceful means), members of certain religious groups, and opponents of particular wars has an equally long history.

Raising an Army

Historically, during times of tension, America has often relied on volunteers to fight its wars. But, even in colonial times men were sometimes conscripted to serve in local militias (army of citizens called together in emergencies). Though colonies sent local militia troops to fight in the Revolutionary War (1775–1783), they denied George Washington's (1732–1799) request to gather a national army by conscription. The U.S. Constitution, adopted in 1789, gave Congress the "power to raise and support armies" but it neither called for nor prohibited conscription.

Not until the American Civil War (1861–1865), did the need to maintain massive armies bring a taste of national conscription to America. In April of 1862, the Confederate Congress (Southern states) passed a conscription law requiring every white man aged eighteen to thirty-five to serve for three years. However, the law exempted men in certain occupations such as teachers, ministers, and overseers of large plantations. Congress followed with the Union Draft Law of 1863 making every male citizen between twenty and forty-five years of age subject to the draft. Avoiding the unpopular occupational exemptions allowed in the Confederate states, the Union (Northern) law allowed draftees to hire a substitute or pay $300 to escape service. Three hundred dollars was roughly equal to a worker's yearly wages.

In both the North and the South the principle behind the draft laws was the same. In a democracy when the security of a nation is in danger, every citizen has the duty to serve his country. On both sides a majority of citizens accepted the draft as necessary, but much opposition persisted. Many objected to exempting some men from the draft. Others claimed the draft was unfair to the poor because a man with money could hire someone else to fight for him or simply pay off his obligation. Draft riots broke out across the country with the worst occurring in New York City in July of 1863. Although very controversial, the draft laws were never tested in the Supreme Court. The legality of a national draft remained unchallenged until World War I.

"I Want You"

America entered World War I in February of 1917 and immediately faced the problem of how to mobilize (build) an army. A large army would have to be recruited and trained at short notice. In response, on May 17,1917 Congress passed the Selective Service Act. The act required young men aged twenty-one to thirty to register with the government so that some of them could be selected for compulsory (required) military service. Substitutes and pays-offs were not allowed. The 1917 draft law did allow for exemptions in essential industries and for conscientious objector (CO) status. CO status permitted men who opposed war for religious reasons to avoid combat. Although twenty-four million men registered for the draft, two to three million failed to register. Approximately 64,700 sought CO status. Almost 340,000 failed to report when called or deserted after arrival at training camp. The U.S. government arrested many of the men who tried to avoid military service and some of those arrested challenged the draft law.

Draft Resisters

Among the many Americans arrested for not registering for the draft was Joseph Arver. After his arrest, Arver and several other draft resisters from his home state of Minnesota brought suit against the federal government. The Supreme Court combined the cases of the draft resisters into one case commonly referred to as Selective Draft Law Cases. Arver and the others argued that the Constitution did not give Congress power to require men, by use of a compulsory (required) draft, to serve in the military. They also charged the conscientious objector status violated the First Amendment's prohibition against establishment of religion. Lastly, they claimed the draft was a form of involuntary servitude (lacking liberty to determine one's way of life) forbidden by the Thirteenth Amendment.

"Supreme and Noble Duty"

The unanimous (all members are in agreement) Court rejected all of the resisters' arguments and upheld the Selective Service Act. Chief Justice Edward D. White wrote the opinion which all of the justices signed. To answer the first argument, White examined Article I, Section 8 of the Constitution which gives Congress power "to raise and support armies" and "make all laws which shall be necessary and proper" to carry out that power. The words of the Constitution seemed perfectly clear to White. He commented,

As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice.

White continued by noting that while a "just government" has a duty to its citizens, the citizens have a "reciprocal obligation (a returned duty or commitment) . . . to render military service in the case of need." White concluded the Constitution indeed gives Congress the power to draft men into the military if the need arises.

Next came the justice's quick dismissal of Arver's second and third arguments. White could not imagine how the Act's religious exemption for conscientious objectors could be viewed as establishing a religion and, therefore, in conflict with the First Amendment. He observed this line of thinking was too unsound "to require us to do more."

Lastly, White saw no similarity between what the Thirteenth Amendment called involuntary servitude and military service. The Thirteenth Amendment was intended to prohibit certain kinds of forced labor such as slave labor. The Court ruled citizenship carried with it an obligation to perform the "supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people." This obligation does not violate prohibitions of the Thirteenth Amendment.

The Draft's Long History

The Selective Draft Law Cases established the clear right of Congress to conscript citizens. Later challenges to the draft often focused on the conscientious objector status. Conscription into the military ended in


A t the end of the twentieth century federal law recognized two types of conscientious objectors, the traditional conscientious objector (CO) and the noncombatant CO. Both were required to register but, if drafted, could object on the basis of religious, ethical, or moral beliefs. Traditional COs objects to participation in war in any form and would normally perform alternative civilian service instead. The noncombatant CO objects to killing in war in any form but would accept noncombatant military duties such as being a medic.

As early as the 1660's members of pacifist religious groups such as the Quakers were exempted from serving in local militias. The Selective Service Act of 1917 provided for CO status and exemptions from military service for members of historically designated "peace churches" including Quakers, Mennonites, and Jehovah's Witnesses. Of the 64,000 men who applied, 57,000 were granted CO status. Of those COs drafted only 4,000 used their certificates of exemption and were placed in various alternative services. Four hundred and fifty of the 4,000 COs were sent to prison for refusal to accept alternative service.

At the onset of World War II (1939–1945), the 1940 draft law required that "religious training and belief" be present for CO status but not necessarily membership in a pacifist religious group. The percentage of inductees exempted as COs was approximately the same as in World War I. However, between 1965 and 1975 with mounting opposition to the Vietnam War resulting in over 100,000 draft evaders, the Supreme Court expanded the definition of CO to include not only religious objections but moral or ethical ones as well.

1973 as the Vietnam War came to an end. Registration for the draft temporarily ended in 1975, only to resume in 1980 under President Jimmy Carter (1977–1981) and continue toward the end of the twentieth century. The goal has been to maintain a list of available young men in case a need arises.

The Court heard two cases concerning draft registration in the 1980's. In Rostker v. Goldberg (1981), the Court denied a claim that draft registration was unconstitutional because it excluded women. In 1984 another draft case ruling gave Congress power to withhold federal student aid from men refusing to register.

Suggestions for further reading

Flynn, George Q. The Draft 1940-1973. Lawrence, Kansas: University Press of Kansas, 1993.

Freidel, Frank. Over There. New York: Bramhall House, 1964.

Gioglio, Gerald R. Days of Decision. Metuchen, New Jersey: Broken Rifle Press, 1989.

Tompkins, Vincent, ed: American Decades 1910-1919. Detroit: Gale Research, 1995.

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Selective Draft Law Cases 1918

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Selective Draft Law Cases 1918